with whom WILBUR K. MILLER, Chief Judge, joins, dissenting.
We think it would not be useful to discuss in detail the majority opinion, but the fact that we refrain from doing so should not be construed as an indication that we agree with its factual or legal conclusions. In passing, however, we note that, although the District Judge expressed dissatisfaction with the Durham rule, as have o+her courts and some judges of this court, he nonetheless followed that rule. We find, in the opinion of the District Judge, 192 F.Supp. 23 (1961), at page 40, the following language :
“The court will, therefore, decide this case on the theory that this burden has to be borne by the Government, and that unless the court finds that it has been established beyond a reasonable doubt, that the crime was not the product of any mental disease or any mental defect, the defendant should be found not guilty on the ground of insanity.”
Our principal purpose here is to dissociate ourselves from the ruling of the majority that, upon remand, the case must be tried before a different judge. We consider this a reflection on a distinguished member of the District Court whose ability and integrity are well known. We think a reading of the judge’s opinion indicates the meticulous care and attention which he gave to this case. There is no reason to believe that the District Judge would not follow the rules laid down by this court in its majority opinion if he were chosen by the Chief Judge of the District Court to retry this case. Whether or not he made a mistake in his suggestion that this matter be referred to the Attorney General for executive clemency prior to appeal or after is immaterial. Even though he thought Naples was guilty of the heinous crime of which he was convicted, the judge was of the opinion that Naples should not be put to death for it, although under the law as it then existed the judge was powerless to impose any penalty but *632that of death for murder done during the commission of a felony.
In our opinion, the crime was adequately proved and there was ample evidence to justify the finding that the defendant was not of unsound mind. But it is also true, as found b.y the District Judge, that “to require the defendant to spend many months in a death cell awaiting a final decision would in itself result in severe mental punishment and agonizing suspense.” The court announced that he was prepared to allow an appeal in forma pauperis, and the suggestion that executive clemency should be asked first was not a condition precedent to the allowance of an appeal.